Fusematic Corporation, (“Company”) General Terms & Conditions
1. The Parties. “Fusematic” means Fusematic Corporation and “Buyer” means the entity purchasing or leasing the products and services collectively the “Product(s)” provisioned by Fusematic. Buyer and Fusematic may each be referred to as a “Party” or collectively as the “Parties”.
2. Acceptance. Acceptance of a purchase order “Order” issued to Fusematic is conditioned upon these General Terms & Conditions. Fusematic hereby expressly rejects and objects to any additional and/or conflicting terms including those terms printed on the back of Orders and any such terms shall not be binding upon Fusematic unless agreed to in writing by an authorized representative of Fusematic.
3. Payment. The currency for all Orders shall be in US Dollars. Payment of invoices shall be net thirty (30) days from the earlier of: (a) Buyer’s receipt of Fusematic’s invoice; (b) scheduled delivery date for the Products; or (c) actual delivery of the Products to the destination. Payment shall be deemed to have been made as of the date of receipt or electronic funds transfer. Fusematic reserves the right to adjust prices at any time. Unless otherwise specified, all taxes (including value added tax, sales, import duties or any other tax applicable to the sale or lease of the Products) shall be the sole responsibility of the Buyer. Buyer grants Fusematic a security interest in Products purchased or leased under an Order to secure payment for such Products purchased or leased and to secure the unpaid balance of the price and all other obligations of Buyer to Fusematic, however arising. Buyer authorizes Fusematic to file all necessary financing statements and other similar documents required to perfect the security interest granted herein and irrevocably grants Fusematic a power of attorney to execute any documents on behalf of Buyer relating thereto. A late charge of the lesser of one and a half percent (1.5%) per month (or the maximum amount permitted by law) shall be assessed on all overdue payments by Buyer. Buyer hereby waives any right of setoff against payments for Products. Buyer shall reimburse Fusematic for all expenses, regardless of their nature or type (including attorneys’ fees), related in any way to Fusematic’s collection of invoices not paid in accordance with these General Terms & Conditions or otherwise incurred by Fusematic in the enforcement of these General Terms & Conditions.
4. Changes. Fusematic and Buyer may make changes to an Order in writing as mutually agreed in writing. To the extent that any changes to an Order affect the purchase price, delivery date or completion date for the Products hereunder, such changes will not take effect unless and until an authorized representative of Fusematic and Buyer have mutually agreed to the changes in writing. Fusematic does not assume responsibility or liability for failure to provide any other Products or services beyond those listed in an Order and paid for by Buyer.
5. Termination. Buyer may, at its option, cancel any unshipped Products. Upon Buyer’s cancellation, Buyer shall pay to Fusematic: (a) the agreed unit prices for Products delivered or services completed and (b) an equitable cancellation charge to cover costs incurred by Fusematic in connection with the part of the work which is canceled; provided, however, that the total liability of Buyer upon such termination shall not exceed the purchase price. Fusematic may cancel an Order, in whole or in part, at any time if (a) Buyer fails to strictly comply with these General Terms & Conditions, (b) Buyer becomes insolvent, appoints or has appointed a receiver, or makes an assignment for the benefit of creditors, (c) a petition in bankruptcy or insolvency is filed by or against Buyer, (d) Fusematic requests and is unable to secure acceptable payment assurances from Buyer for the Products identified in an Order, or (e) amounts due Fusematic by Buyer are unpaid. Upon cancellation of an Order, Buyer shall be obligated to pay to Fusematic the price for all Products provided and all services performed to date.
6. Force Majeure. Neither Party will be liable to the other for any failure to fulfill its obligations under an Order (other than payment obligations) caused by a force majeure cause such as an act of God, pandemic, epidemic, strike, lockout, breakdown, accident, order or regulation of or by any governmental authority, failure of supply or inability, by the exercise of reasonable diligence, to obtain supplies, parts or employees necessary to perform such obligation, war, or any other emergency or unforeseeable circumstances beyond its reasonable control. The affected Party shall notify the other Party in the case of such event indicating any changes which will require a written modification under the Changes section herein. The time within which such obligation must be performed will be extended for a period of time equivalent to the number of days of delay from such cause.
7. Delivery. All Products shall be delivered pursuant to Incoterms 2020 ExWorks 2020 (Fusematic place of shipment). Each delivery of Product shall be governed by the respective Order and will be packaged appropriately for shipment to the designated location.
7.1 Schedule. All dates for the shipment and/or delivery of Products and/or for the provision of services are approximate. Fusematic shall not be liable for delay in or failure to make shipment and/or delivery of Products or commencement, performance or completion of services by any identified date for any reason whatsoever. In the event of any delay, regardless of the cause, the Parties shall agree upon a new date for the shipment and/or delivery of Products and/or commencement, performance or completion of services. In the event of any delay caused by Buyer, Buyer shall pay Fusematic for all costs and expenses incurred by Fusematic related to such delay.
7.2 Freight Charges. Any reference to freight charges contained in an Order is an estimate. Fusematic is not responsible for any differences that may occur between freight estimates contained in an Order and actual freight charges applicable at the time of shipment, and Buyer shall incur and be responsible for all costs associated therewith.
7.3 Cost of Goods. Unless otherwise stated in an Order, Buyer shall pay all cost increases Fusematic is assessed for materials incorporated into Products and/or services, including but not limited to materials and fuel surcharges, to the extent such increases exceed any estimated costs used by Fusematic to develop an Order by ten percent (10%) and which occurs after the issuance of an Order, but prior to the delivery of the Products and/or provision of the services.
7.4 Site Condition. Buyer warrants that the site where Products are to be delivered and/or installed and/or where services are to be performed shall be ready and adequate for Fusematic’s delivery and/or installation of the Products and/or performance of services. Buyer's obligations in this regard include but are not limited to the removal of all obstructions and institution of safety measures to protect Fusematic’s property, employees, agents and contractors. Buyer shall be responsible for all costs and expenses associated with Fusematic’s delay and/or inability to deliver and/or install any Products and/or perform any services related to Buyer's failure to comply with this Section. Fusematic in no way warrants the sufficiency of the site where the Products are delivered and/or installed and/or services are performed.
8. Limited Warranty of Products. Fusematic warrants exclusively to Buyer that the Products and services (other than spare parts) will be free from defects in material and workmanship under normal use and care for a period of one hundred and eighty (180) days, commencing upon delivery. Fusematic’s sole and exclusive liability, and Buyer’s exclusive remedies, for breach of this warranty are as follows: (i) Fusematic, at its sole option and expense, will repair or replace any Products or services found to be defective; and (ii) in all cases, Fusematic’s liability under this warranty is subject to the following conditions: (a) Fusematic shall not be liable under this warranty if the Products or services have been modified or altered in any material manner after shipment by any person other than Fusematic; (b) Fusematic shall not be liable under this warranty if the alleged defect in the Products or services does not exist or was caused by Buyer’s or any third person’s misuse, neglect, improper installation or testing, unauthorized attempts to repair, unusual physical or electrical stress, misuse, abuse, or any other cause beyond the range of use, or by accident, fire or other hazard; and (c) Buyer has returned to Fusematic during the applicable Warranty Period pursuant to the RMA Procedure below; and (d) Fusematic has confirmed the Products to be defective. Third party products supplied by Fusematic to Buyer are not warranted by Fusematic. Third party products may be warranted separately by their respective manufacturers or such other parties from whom Fusematic purchases such third party Products and Fusematic shall, to the extent possible, assign to Buyer whatever rights Fusematic may obtain under any such warranties. THE WARRANTIES OF FUSEMATIC SET FORTH IN THIS SECTION ARE IN LIEU OF, AND BUYER HEREBY WAIVES, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES OF FUSEMATIC, EXPRESS, STATUTORY OR IMPLIED, ARISING OUT OF OR IN CONNECTION WITH THE SALE, AND PURCHASE OF THE PRODUCTS AND SERVICES, OR THE USE, REPAIR OR PERFORMANCE THEREOF, OR THE COURSE OF DEALING OR PERFORMANCE PURSUANT TO THIS AGREEMENT. FUSEMATIC SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE.
9. RMA Procedure. Buyer must obtain a Return Material Authorization (“RMA”) number from Fusematic prior to returning any Product to Fusematic. Any RMA return by Buyer shall be in the packaging designated by Fusematic and must otherwise follow Fusematic’s then-current RMA procedure. For every Product returned by Buyer subject to this Section, Fusematic shall, at its option, either (i) accept the defective Product and repair or have it repaired, or (ii) accept return of the defective Product and provide a replacement Product to Buyer. If Fusematic determines in its reasonable discretion that any Product returned by Buyer cannot be returned under the Limited Warranty of Products in Section 8 herein, Fusematic will notify the Buyer of such and will return the applicable Product to Buyer at Buyer’s sole cost and expense. In addition, Fusematic may assess Buyer a charge for testing and examination of non-defective Products. The repair or replacement of Products in accordance with this Section shall be Fusematic’s entire liability and Buyer’s sole and exclusive remedy for Fusematic’s breach of the Limited Warranty of Products in Section 8.
10. Performance of Services and Training. Fusematic shall perform any on-site services with minimum interference to the operations of Buyer and in accordance with all necessary precautions (including applicable safety regulations provided by Buyer). Fusematic training for the operation of the Products is available at the Fusematic manufacturing site or on Buyer’s site (for an additional fee). FUSEMATIC MAKES NO WARRANTIES OF ANY KIND FOR ANY TECHNICAL ADVICE PROVIDED BY FUSEMATIC TO BUYER.
11. Intellectual Property. The Intellectual Property Rights in the Products are and will remain the sole and exclusive property of Fusematic and its suppliers, if any, whether Product is separate or combined with any other product. Fusematic's rights under this Section will include, but not be limited to: (i) all modifications to, and derivative works based upon, the Products. “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights (including, but not limited to, rights in audio visual works and moral rights), trade secret rights, rights of priority and any other intellectual property right recognized in any country or jurisdiction in the world. Fusematic reserves the sole and exclusive right to assert claims against third parties at its discretion for infringement or misappropriation of its Intellectual Property Rights in the Products.
12. LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THIS ORDER UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND IRRESPECTIVE OF WHETHER SUCH PARTY HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FUSEMATIC’S LIABILITY EXCEED THE AMOUNTS PAID BY BUYER UNDER THE APPLICABLE ORDER.
13. Compliance with Laws; Taxes. The Parties shall comply with all Federal, State and Local laws, ordinances, rules and regulations applicable to its performance under these General Terms & Conditions.
14. Assignment. Except as herein expressly provided to the contrary, the sale of Products is solely to Buyer and is not for the benefit of any third party. Any attempted assignment by Buyer of Buyer’s purchase agreement or of any rights arising under these General Terms and Conditions without the written consent of Fusematic shall be void and of no effect whatsoever.
15. Entire Agreement. These General Terms and Conditions embody the entire agreement and understanding of the Parties with respect of the subject matter of any and all Orders between the Parties and supersedes all prior agreements and understandings between the Parties with respect to the transaction(s) contemplated hereby.
16. Governing Law & Venue; Attorney’s Fees. The validity, performance and all matters relating to the interpretation and effect of these General Terms & Conditions and any amendments thereto shall be governed by the laws of the State of Florida, without giving effect to choice of law principles thereof. In any action or proceeding to enforce rights under this contract, the prevailing Party will be entitled to recover documents costs and reasonable attorney’s fees from the other Party. The United Nations Convention on Contracts for the International Sale of Products shall not apply in any manner to these General Terms & Conditions or any Order(s).